When thinking about protecting cultural heritage, the first question that might come to us is why is it necessary to safeguard cultural heritage? The answers given to this issue vary depending on States’ different legal traditions and, therefore, on the cultural principles underpinning their laws and regulations. Yet, the axiology presented by the Austrian art historian Aloïs Riegl is a good starting point to reflect on this matter.
Written by: Vanesa Menéndez Montero
Different approaches, one goal: protect cultural heritage
According to Riegl (1903), the values attached by societies to their cultural property are diverse. These can be either remembrance or contemporary ones. Among the former, the historical value justifies the protection of cultural property to maintain its documentary capacity. This perspective triggers the elaboration and implementation of legislation and public policies intending to ensure its preservation in situ or implying the minimum possible human intervention. That is the approach adopted by most Western States and those international organizations dedicated to protecting cultural heritage, such as the United Nations Economic, Social and Cultural Organization (UNESCO).
As for the second, that is to say within contemporary values, a crucial aspect to highlight is the instrumental value. This underlies the protection of cultural property as long as it satisfies some material needs or has a practical use. Thus, priority is given to the restoration or reuse of cultural property if this continues to provide a concrete and sensible benefit to the local community. This is the dominant value in the law and practice related to heritage preservation within Islamic States.
The Islamic protection of cultural heritage, its sources and foundations
Islamic States shape the legal protection of cultural heritage on their territory following the instructions within the Quran, one of its core concepts being the ‘aquidah (creed) (Mahdy 2019, p3). According to the ‘aquidah, nothing material is sacred or has intrinsic value, with limited exceptions. This explains why, for these States, historic buildings shall be protected to the extent that they have a social function, generally linked to charity purposes, the use of surrounding public spaces or as a means to enhance development.
This value contrast, prevailing in the protection and management of cultural heritage, has given rise to numerous conflicts between certain Western States vis-à-vis some Islamic States. Examples from Saudi Arabia clearly reflect some of these tensions.
Since 1926 Saudi Arabia has carried out the destruction of more than 90 per cent of the historic quarters surrounding the holy cities of Mecca and Medina. While these events provoked an outcry of States like Turkey and two of the Special Rapporteurs of the United Nations, the former Saudi Minister of Islamic Affairs, Saleh bin Abdul-Aziz bin Mohammad al-Sheikh, excused these actions as being performed under the sovereignty of the Saudi State. Moreover, he emphasized that these activities never negatively affected those sites included in the World Heritage List, like the archaeological site of Al Hijr – Madain Salih.
This case is illuminating insofar as it reflects the difficulty of identifying whether, to what extent, and on what grounds Islamic States effectively protect their cultural heritage, calling inversely into question the extent to which the Christian-historical perspective prevails in the international framework of cultural heritage protection.
The protection of Islamic heritage within the World Heritage framework
One wonders on how possibly the World Heritage Convention of 1972 has reconciled these two different approaches towards the protection of cultural heritage. Here we have to make two essential appreciations. First, the Arab League Educational, Cultural and Scientific Organization (ALECSO) has taken part in the meetings of the UNESCO World Heritage Committee to unify Arab positions and to rally international support for Arab files nominated for inscription on the World Heritage List. Second, as Islam positively rates sciences and their development, the progression of archaeology into a scientific discipline explains the Islamic States’ increasing interest in the protection of archaeological sites, thus corresponding to Western States’ conservative approach. Yet, those sites still have a social function worthy of protection, which is directly tied to the development of scientific knowledge itself. Sometimes, this further extends to all antiquities and historical relics, preserved beyond their mere cultural value.
We cannot therefore assert that Islamic States do not protect the tangible cultural heritage located on their territory simply because they consent to the destruction of the part of it that has ceased to serve a social function. On the contrary, when it comes to cultural heritage worthy of protection under the above noted grounds, Islamic States have rarely destroyed it, as certain non-state actors advocating a more conservative interpretation of Islam have done with those cultural properties unaligned with their beliefs. Indeed, regional scholars from Islamic States have publicly and forcefully condemned these actions (Mahdy 2019, p6).
Bearing this in mind, one lesson to draw from the Islamic heritage preservation approaches lead us to the forceful question the very exchange raises: Do we need to preserve and spend time and resources in that cultural property that have ceased to serve a social function or that do not report a benefit to local communities anymore? Moreover, if we accept that heritage preservation regimes are strongly influenced by different subjectivities, how can reputed impartial bodies such as UNESCO and the States themselves judge the premises under which the preservation of cultural heritage is carried out along with its effectiveness?
About the author
Vanesa Menéndez Montero holds a Double Degree in Law and Political Science at Universidad Autónoma of Madrid and a LL.M. in Public International Law at Leiden University. Currently, she is a Lecturer in Public International Law at Universidad Autónoma of Madrid.. Her research focuses on International Cultural Heritage Law and the intersections between this and other branches of International Law, mainly International Environmental Law, International Human Rights Law, and International Criminal Law.
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